SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LYBEROPOULOS
[2017] SASCFC 139
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nicholson, The Honourable Justice Bampton and The Honourable Justice Hinton)
27 October 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING
Application for permission to appeal against sentence.
Applicant pleaded guilty in the District Court to three counts of trafficking in a large commercial quantity of cannabis contrary to s 32(1) of the Controlled Substances Act 1984 (SA).
The applicant, who is 68 years of age, was sentenced to imprisonment for nine years. That sentence was to be served cumulative upon a sentence in relation to which the applicant was on parole at the time of his committing the trafficking offences, being one year, two months and 22 days. The Judge fixed a non-parole period of six years and nine months.
The applicant argued that having regard to his role in the criminal enterprise, to his explanation for offending, his contrition, his age and personal circumstances, the sentence imposed was manifestly excessive.
Held (Hinton J with Nicholson and Bampton JJ agreeing): Permission to appeal granted; appeal dismissed.
1. Having regard to sentences imposed in recent times in cases involving trafficking in large commercial quantities of cannabis, it was arguable that the sentencing Judge’s starting point of 12 years was manifestly excessive. Permission granted.
2. If the sentencing Judge had imposed separate sentences for each of the offences, taking into account the fact that the scale of the enterprise could not have escaped the applicant, the relative blameworthiness of the applicant, and the applicant’s antecedents, a starting point for each offence of around four years would not have been excessive.
3. In all the circumstances, the sentence imposed was not manifestly excessive.
Criminal Law (Sentencing) Act 1988 (SA), s 18A; Supreme Court Act 1935 (SA), s 48(4); Controlled Substances Act 1984 (SA), s 32(1); Criminal Law Consolidation Act 1935 (SA), ss 352(1), 353(4), referred to.
Dinsdale v The Queen (2000) 202 CLR 321; R v Morse (1979) 23 SASR 98; Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58; Markarian v The Queen (2005) 228 CLR 357 ; R v Young (2016) 126 SASR 41; Power v The Queen (1974) 131 CLR 623 at 629; Lowe v The Queen (1984) 154 CLR 606; The Queen v Robinson (1979) 22 SASR 367; R v Faehrmann; R v Moore; R v Price-Austin (2014) 118 SASR 549, applied.
R v LYBEROPOULOS
[2017] SASCFC 139Court of Criminal Appeal: Nicholson, Bampton and Hinton JJ.
NICHOLSON J:
I agree with the orders proposed by Hinton J and with his reasons.
BAMPTON J:
I agree that permission to appeal should be granted but the appeal dismissed for…
Continue reading R v Lyberopoulos
Sign in free to access the full text
- AGLC
- R v Lyberopoulos [2017] SASCFC 139
- Case
- [2017] SASCFC 139
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the sentence imposed was manifestly excessive, particularly in light of the applicant's commercial motivation for his involvement, his role in the enterprise, his prior convictions for similar offending, the fact that the current offences were committed while on parole, and current sentencing standards for such offences. The court was also required to consider the relevance of the maximum penalty for the offences.
The court reasoned that the applicant's prior convictions and commission of offences while on parole necessitated a sentence that provided specific deterrence and served as a significant punishment. While acknowledging the applicant's age and the deterrent effect of potential parole breaches, the court found that the non-parole period, which was approximately two-thirds of the head sentence, was not so disproportionate as to be plainly wrong. The court also considered the principles articulated in *Markarian v The Queen* regarding the use of maximum penalties as a yardstick, but cautioned against using them as a sole basis for sentencing or making proportional deductions.
The court granted permission to appeal but dismissed the appeal, upholding the sentence imposed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The respondent submitted that having regard to the fact that the applicant’s motivation for involvement in the enterprise was purely commercial, to his role in the enterprise, to his prior convictions concerning involvement in the illicit cannabis trade, to the fact that the offences were committed whilst the applicant was on parole for the same sort of offending, and to current sentencing standards for offending of this type, it was not arguable that the sentence imposed was manifestly excessive. Particular emphasis was placed on the applicant’s prior offending as denying any entitlement to leniency and fueling the need for a sentence that specifically deterred.Consideration The maximum penalty for each of the three counts to which the applicant pleaded guilty was imprisonment for life or a fine of $500,000, or both.[10] In Markarian v The Queen Gleeson CJ, Gummow, Hayne and Callinan JJ said:[11][10] Controlled Substances Act 1984 (SA) s 32(1).[11] (2005) 228 CLR 357 at [30]-[31].Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing, Stockdale and Devlin observe that: “A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century ... or because it has more recently been set at a high catch-all level ... At other times the maximum may be highly relevant and sometimes may create real difficulties ... A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate].”It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case. That he used the maximum penalty impermissibly appears from his Honour's particular deference to it in this passage: “Parliament cannot have intended that, other things being equal, the penalty for supplying more than 250 g should be less than for supplying that quantity.”The form of the statement is explained by the fact that his Honour did not start with the maximum penalty for an offence involving the quantity in question, but used another maximum penalty as his starting point, that is, the maximum for an offence in the category of seriousness immediately below that of the principal offence. (footnotes omitted.)